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DISARMING THE PRIVATE ATTORNEY GENERAL†
Pamela S. Karlan*
In Disarming the Private Attorney General, Professor Karlan
describes how the Supreme Court has created a significant
regulation-remedy gap by critically undercutting one of the primary
mechanisms Congress has used for enforcing civil rights: the
private attorney gen-eral. Professor Karlan identifies a series of
techniques the Court has used to strip private individuals of their
ability to enforce civil rights laws. On the one hand, the Court
has expanded the scope of sover-eign immunity under a new
“Eleventeenth” Amendment jurispru-dence and the scope of compelled
arbitration under the Federal Arbi-tration Act. On the other hand,
the Court has contracted the availability of implied rights of
action and attorney’s fees. The over-all effect of the Court’s
decisions is to severely restrict enforcement of basic
antidiscrimination requirements.
This year marks the bicentennial of Marbury v. Madison.1 The
Su-preme Court’s opinion remains a quintessential assertion of
judicial power under the cloak of judicial modesty. William Marbury
had asked the Court for a writ of mandamus ordering James Madison,
the Secretary of State, to deliver his commission of office as a
justice of the peace. Al-though the Court found that Marbury had a
legal right to the commission, it held that it lacked the power to
provide the relief he sought. But the technique the Court used to
disclaim its power over Madison was to pro-claim its power over
Congress. It declared the Judiciary Act of 1789 un-constitutional.
The Act, the Court held, violated Article III, because it
† © 2002. Pamela S. Karlan. I presented a version of this
Article as the David C. Baum Memo-rial Lecture in Civil Rights and
Civil Liberties at the University of Illinois College of Law, on
April 1, 2002. I thank Viola Canales for helpful suggestions on an
earlier draft. * Kenneth and Harle Montgomery Professor of Public
Interest Law, Stanford Law School.
In writing this Article, I have felt a tremendous debt to the
members of the constitutional law study group. Every other week for
the past several years, we have read a pair of recent Supreme Court
opin-ions, and one of the many rewards has been the unexpected
connections we have made among seemingly unrelated decisions. Some
of those connections inform my argument here. Especially as the
last of the other original members head off to judicial clerkships,
I think of how Chaucer portrayed the clerk in the Canterbury
Tales—“gladly wolde he lerne and gladly teche”—and I feel glad to
have learned and taught with such extraordinary students. 1. 5 U.S.
(1 Cranch) 137 (1803).
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granted the Supreme Court original jurisdiction (rather than
appellate ju-risdiction) over mandamus proceedings. And so the
Supreme Court re-fused to exercise the authority Congress had
conferred. Marbury is thus a paradoxical example of Justice
Brandeis’s classic observation that some-times “[t]he most
important thing we do is not doing.”2
The two great Alexanders of constitutional law—Hamilton and
Bickel—saw courts as essentially reactive institutions. The
judiciary, Ham-ilton wrote in the Federalist Paper that gave
Bickel’s book its title, is “the least dangerous branch” because it
“can take no active resolution what-ever . . . and must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.”3 Bickel applied this general propo-sition even to
the fundamental constitutional principle of equality ex-pressed in
Brown v. Board of Education,4 suggesting that the Supreme Court
might properly decline to grant an immediate remedy because
real-istic enforcement would require enlisting Congress and the
President.5 The Alexandrian view depends on a model of adjudication
in which the courts announce a rule and then rely on the political
branches to obey or enforce it.6 But Marbury shows that the
converse can also be true. There is an important class of cases in
which the legislature and the executive must depend on the
judiciary for the efficacy of their judgments. In these cases, it
is judicial refusals to act that pose a danger “to the political
rights of the Constitution.”7
Marbury itself recognized this threat, when Chief Justice
Marshall observed that the government of the United States could no
longer be “termed a government of laws, and not of men . . . if the
laws furnish no remedy for the violation of a vested legal right.”8
As the Court stated last term, in Bush v. Gore, although there are
“vital limits on judicial author-ity,” when “contending parties
invoke the process of the courts, . . . it be-comes our unsought
responsibility to resolve the federal and constitutional issues the
judicial system has been forced to confront.”9 What makes that
declaration so ironic is the context. As in Marbury, an aspirant
for federal office sought the Court’s assistance. But unlike
William Marbury, George W. Bush managed to procure a sweeping
remedial order from the Su-preme Court without ever identifying any
vested legal right that the rem-
2. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE
SUPREME COURT AT THE BAR OF POLITICS 71 (1962). 3. See THE
FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter
ed., 1961). This passage appears as the epigraph to Bickel’s book.
BICKEL, supra note 2. 4. 347 U.S. 483 (1954). 5. See BICKEL, supra
note 2, at 247–54, 267–72. 6. Even when it comes to straightforward
constitutional adjudication, however, as Gerald Gunther explained
in a classic article, there can be substantial costs to a court’s
refusal to address properly pre-sented claims. See Gerald Gunther,
The Subtle Vices of the “Passive Virtues”—A Comment on Principle
and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964). 7.
THE FEDERALIST NO. 78, supra note 3, at 465. 8. 5 U.S. (1 Cranch)
137, 163 (1803). 9. Bush v. Gore, 531 U.S. 98, 111 (2000) (per
curiam).
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edy he requested would actually vindicate.10 Moreover, the same
Court that provided George W. Bush with an unprecedented remedy in
the ser-vice of an expansive, if evanescent, equal protection claim
has shown itself strikingly resistant to judicial remedies for
civil-rights plaintiffs raising more traditional equality-based
claims.
There are two ways a court might retrench on civil rights
protections. First, a court might explicitly redefine an underlying
right in narrower terms. For example, in City of Mobile v.
Bolden,11 the Supreme Court re-defined the preexisting
jurisprudence of racial vote dilution, embodied in such decisions
as White v. Regester,12 to forbid only those electoral struc-tures
that were adopted or maintained for racially discriminatory
purposes, rather than prohibiting also those that had a disparate
impact on minority voters.13 Similarly, in Patterson v. McLean
Credit Union,14 the Supreme Court offered a cramped interpretation
of 42 U.S.C. § 1981’s protection against racial discrimination in
the right “to make and enforce contracts.”15 It held that § 1981
“extends only to the formation of a contract, but not to problems
that may arise later from the conditions of continuing
employ-ment,”16 and thus that racial harassment of employees was
not actionable under § 1981.
The other approach, which is more insidious, is for the court to
leave the formal right in place, but to constrict the remedial
machinery. At best, this will dilute the value of the right, since
some violations will go unremedied. At worst, it may signal
potential wrongdoers that they can infringe the right with
impunity.
Remedial abridgment is a pervasive tool of the contemporary
Su-preme Court. In criminal procedure, for example, Carol Steiker
has shown that while the Burger and Rehnquist Courts have left in
place most of the Warren Court’s restrictions on police activity,
they have developed new “inclusionary” rules that allow the
introduction of unconstitutionally
10. I explore this point at substantial length in Pamela S.
Karlan, Nothing Personal: The Evolution of the Newest Equal
Protection from Shaw v. Reno to Bush v. Gore, 79 N.C. L. REV. 1345
(2001), and Pamela S. Karlan, Equal Protection: Bush v. Gore and
the Making of a Precedent, in THE UNFINISHED ELECTION OF 2000, at
159, 185–95 (Jack N. Rakove ed., 2001). 11. 446 U.S. 55 (1980). 12.
412 U.S. 755 (1973). 13. For discussions of this retrenchment, see,
e.g., SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES,
THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS
708–10, 729–45 (2d ed. 2001); James U. Blacksher & Larry T.
Menefee, From Reynolds v. Sims to City of Mo-bile v. Bolden: Have
the White Suburbs Commandeered the Fifteenth Amendment?, 34
HASTINGS L.J. 1, 4, 28 (1982). 14. 491 U.S. 164 (1989). 15. 42
U.S.C. § 1981 provided, at the time, that “[a]ll persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as is
en-joyed by white citizens.” 42 U.S.C. § 1981 (1988) (current
version at 42 U.S.C. § 1981(a) (2000)). Con-gress subsequently
amended § 1981 to overturn the Court’s decision in Patterson,
declaring that “[f]or purposes of this section, the term ‘make and
enforce contracts’ includes the making, performance, modifi-cation,
and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b) (2000). 16. 491 U.S. at 176.
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obtained evidence, thereby dampening the effect of “conduct”
rules di-rected at law enforcement personnel.17 Similarly, in
structural reform liti-gation, Daryl Levinson has pointed to ways
in which the Court’s re-trenchment on the scope of appropriate
remedies has backwashed into the definition of the underlying
rights.18
In this article, I discuss how several of the Supreme Court’s
civil rights decisions from last Term reflect this strategy. For
the most part, the Court has left the political branches’ power to
regulate relatively uncon-strained. That is, the Court assumes that
Congress and the Executive can prohibit various forms of primary
conduct. At the same time, however, the Court has launched a
wholesale assault on one of the primary mecha-nisms Congress has
used for enforcing civil rights: the private attorney general.
The idea behind the “private attorney general” can be stated
rela-tively simply: Congress can vindicate important public policy
goals by em-powering private individuals to bring suit. While one
can imagine a regime in which Congress simply delegates the
government’s own right to enforce its laws to private bounty
hunters—that is essentially what qui tam lawsuits envision19—the
current reliance on private attorneys general is more mod-est. It
consists essentially of providing a cause of action for individuals
who have been injured by the conduct Congress wishes to proscribe,
usu-ally with the additional incentive of attorney’s fees for a
prevailing plain-tiff.
Virtually all modern civil rights statutes rely heavily on
private attor-neys general. As the Court explained in Newman v.
Piggie Park Enter-prises20—one of the earliest cases construing the
Civil Rights Act of 1964, which forbids various kinds of
discrimination in public accommodations, federally funded programs,
and employment—Congress recognized that it could not achieve
compliance solely through lawsuits initiated by the At-torney
General: “A [public accommodations] suit is thus private in form
only. When a plaintiff brings an action . . . he cannot recover
damages. If he obtains an injunction, he does so not for himself
alone but also as a ‘pri-vate attorney general,’ vindicating a
policy that Congress considered of the highest priority.”21 Thus,
Piggie Park recognized the piggybacking func-tion of the Act:
Congress harnessed private plaintiffs to pursue a broader purpose
of obtaining equal treatment for the public at large. Later, the
17. See Carol S. Steiker, Counter-Revolution in Constitutional
Criminal Procedure?: Two Audi-ences, Two Answers, 94 MICH. L. REV.
2466 (1996). 18. See Daryl J. Levinson, Rights Essentialism and
Remedial Equilibration, 99 COLUM. L. REV. 857 (1999). 19. And what
Judge Jerome Frank, who apparently coined the phrase “private
attorney general” in his 1943 opinion in Associated Industries v.
Ickes, 134 F.2d 694, 704 (2d Cir. 1943), imagined. For discus-sions
of qui tam lawsuits, see, e.g., Vermont Agency of Natural Resources
v. United States ex rel. Stevens, 529 U.S. 765 (2000); Evan
Caminker, Comment, The Constitutionality of Qui Tam Actions, 99
YALE L.J. 341 (1989). 20. 390 U.S. 400 (1968) (per curiam). 21. Id.
at 401–02.
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Court explained that this public function exists even when a
civil rights plaintiff asks for compensatory damages rather than
injunctive relief. “Unlike most private tort litigants,” the civil
rights plaintiff “seeks to vin-dicate important civil and
constitutional rights that cannot be valued solely in monetary
terms . . . . Regardless of the form of relief he actually
ob-tains, a successful civil rights plaintiff often secures
important social bene-fits.”22 Thus, when “his day in court is
denied him,” the congressional pol-icy which a civil rights
plaintiff “seeks to assert and vindicate goes unvindicated; and the
entire Nation, not just the individual citizen, suf-fers.”23
This article explores four decisions from October Term 2000 in
which the Supreme Court sharply abridged the ability of private
attorneys gen-eral to get their day in court. In two cases, the
Court denied private plain-tiffs the ability to bring lawsuits
altogether. In Board of Trustees of the University of Alabama v.
Garrett,24 the Court underscored its narrow read-ing of
congressional enforcement power under section 5 of the Fourteenth
Amendment, holding that Congress cannot authorize private damages
lawsuits against state governments that discriminate against the
disabled. And in Alexander v. Sandoval,25 the Court held that there
is no private right of action to enforce disparate-impact
regulations promulgated under Title VI of the Civil Rights Act of
1964, which forbids racial discrimination in federally funded
programs or activities. In each of these cases, the Court left open
(perhaps only for the time being) the possibility of other forms of
congressional or administrative enforcement, but the elimination of
private attorneys general altogether will surely decrease overall
en-forcement of the underlying rights.
In two other cases, the Court left open the formal availability
of pri-vate lawsuits, but created substantial practical barriers to
private vindica-tion of public policy. In Circuit City Stores, Inc.
v. Adams,26 the Court con-strued the Federal Arbitration Act (FAA)
in a way that permits employers to compel workers to arbitrate
claims under federal fair-employment laws. And in Buckhannon Board
& Care Home, Inc. v. West Virginia Depart-ment of Health &
Human Resources,27 the Court rejected the preexisting “catalyst
theory” for granting attorney’s fees. Under that theory, courts had
awarded plaintiffs attorney’s fees when their lawsuits led the
defen-dant to change the challenged practice voluntarily. The
Supreme Court, however, held that fees can be awarded only if there
is a judicially sanc-tioned change in the parties’ legal
relationship.28 These decisions will cut
22. City of Riverside v. Rivera, 477 U.S. 561, 574 (1986). 23.
Id. at 575 (internal quotation marks omitted). 24. 531 U.S. 356
(2001). 25. 532 U.S. 275 (2001). 26. 532 U.S. 105 (2001). 27. 532
U.S. 598 (2001). 28. Id. at 604.
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down both on the amount of civil rights enforcement and on the
develop-ment of the law through the creation of binding
precedent.
I. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA V. GARRETT AND
THE “ELEVENTEENTH” AMENDMENT
When Judge Jerome Frank originally coined the phrase “private
at-torney general,” he was thinking about litigation by private
plaintiffs “to prevent [a government] official from acting in
violation of his statutory powers.”29 There is thus something
deeply ironic about the fact that the Supreme Court has most
sharply limited the use of private attorneys gen-eral in precisely
those cases which involve claims of unlawful state action.
When Congress wants to regulate activities such as employment,
pub-lic accommodations, government programs, or market
transactions, it has two broad sources of authority on which to
draw: its enumerated powers under Article I and its enforcement
clause powers under the Reconstruc-tion Amendments.30 In general,
modern Congresses have relied more of-ten on their Article I
powers—particularly the commerce and spending clause powers of
Article I, section 8—even when they are pursuing the values of
nondiscrimination more expressly reflected in the substantive
commands of the Thirteenth and Fourteenth Amendments. In part, this
reliance is a product of the peculiar limitations of the
Reconstruction Amendments: the Fourteenth Amendment reaches only
state actors,31 and in many cases Congress wants to regulate both
public and private conduct; the Thirteenth Amendment, while it
reaches private conduct as well as state action, covers only a
narrow subset of the behavior Congress might want to reach.32 By
contrast, the Commerce Clause gives Congress tre-mendous latitude,
permitting regulation of virtually any area of economic
endeavor.33
29. Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir.
1943). 30. The Thirteenth, Fourteenth, and Fifteenth Amendments
each contain a section providing Con-gress with “power to enforce”
the Amendments’ substantive limitations “by appropriate
legislation.” See U.S. CONST. amend. XIII, § 2; amend. XIV, § 5;
amend. XV, § 2. 31. See United States v. Morrison, 529 U.S. 598,
619–26 (2000); The Civil Rights Cases, 109 U.S. 3, 11 (1883). 32.
The Supreme Court has held that Congress can rely on the Thirteenth
Amendment, which by its own terms forbids “slavery” and
“involuntary servitude,” to reach discrimination that can be seen
as a “badge” or “incident” of slavery. See Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 437–44 (1968). But the Court has generally read
what constitutes a badge or incident of slavery quite narrowly. Cf.
Gen. Bldg. Contractors v. Pennsylvania, 458 U.S. 375, 390–91 (1982)
(holding that § 1981, which rests on congres-sional power to
enforce the Thirteenth Amendment, does not reach practices that
have a disparate racial impact unless the plaintiffs also show a
racially discriminatory purpose); City of Memphis v. Greene, 451
U.S. 100, 126–28 (1981) (refusing to find that a decision to close
off streets in a white area that lay be-tween a black residential
area and a municipal park implicated a badge or incident of
slavery). 33. I read the Court’s recent decisions reviving
limitations on congressional power under the Com-merce Clause, see
Morrison, 529 U.S. at 607–19 and United States v. Lopez, 514 U.S.
549 (1995), as leaving the regulation of unambiguously economic
activity essentially untouched.
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But although Congress can regulate a wider range of behavior
under the Commerce Clause than under the Reconstruction Amendments,
its en-forcement authority is shallower in an important sense. In
Seminole Tribe v. Florida,34 the Supreme Court held that Article I
does not empower Con-gress to abrogate the sovereign immunity
embodied in the Eleventh Amendment: “Even when the Constitution
vests in Congress complete law-making authority over a particular
area, the Eleventh Amendment prevents congressional authorization
of suits by private parties against un-consenting States.”35 And in
Alden v. Maine,36 the Court held that Con-gress could not use its
Article I powers to force states to defend against private damages
lawsuits in their own courts either. Cases like Seminole Tribe and
Alden thus drive a wedge between Congress’ essentially plenary
power to regulate state economic activity and its ability to
enforce its regu-lations by making damages remedies available and
attractive to private at-torneys general.37
As Seminole Tribe itself recognized, when Congress acts to
enforce the Reconstruction Amendments, it does not face this
regulation-remedy gap. In Fitzpatrick v. Bitzer,38 the Court
unanimously held that Congress can use its power under section 5 of
the Fourteenth Amendment to “pro-vide for private suits against
States or state officials which are constitution-ally impermissible
in other contexts”39 because the very nature of the Four-teenth
Amendment’s prohibitions is to limit state sovereignty.40
The juxtaposition of Seminole Tribe and Alden on the one hand
with Fitzpatrick on the other, inevitably places pressure on the
question of which source of congressional authority undergirds a
statute. Congress can create quite similar rights and duties under
both the Commerce Clause and the Fourteenth Amendment, but Congress
has two quite different en-forcement regimes. In a move reminiscent
of the fabled dissertation in David Lodge’s Small World on T. S.
Eliot’s influence on Shakespeare, a court that used to see the
Fourteenth Amendment as a limitation on the Eleventh has come to
see the Eleventh as a constraint on the Fourteenth.
Last Term’s decision in Board of Trustees v. Garrett41 offers a
particu-larly striking example of “Eleventeenth” amendment
jurisprudence. Garrett concerned Title I of the Americans with
Disabilities Act (ADA).42
34. 517 U.S. 44 (1996). 35. Id. at 72. 36. 527 U.S. 706 (1999).
37. Private litigants can, to the extent they have standing, seek
relief against some ongoing state practices that violate Article
I-based laws by using Ex parte Young, 209 U.S. 143 (1908), which
permits suits for injunctive relief against state officials,
ostensibly in their personal capacity. For a discussion of Ex parte
Young, see Pamela S. Karlan, The Irony of Immunity: The Eleventh
Amendment, Irreparable Injury, and Section 1983, 53 STAN. L. REV.
1311, 1318 (2001). 38. 427 U.S. 445 (1976). 39. Id. at 456. 40. See
id. at 454–56. 41. 531 U.S. 356 (2001). 42. Americans with
Disabilities Act, 42 U.S.C. §§ 12111–12117 (2000).
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The ADA prohibits certain employers, including state
governments, from discriminating against otherwise qualified
individuals with disabilities, and requires these employers to
offer “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual” unless they can
show “that the accommodation would impose an undue hardship on the
operation of the [employer’s] business.”43 Among the en-forcement
devices Congress provided for some violations was a private cause
of action for damages.44 The plaintiffs in Garrett were employed by
instrumentalities of the state of Alabama. They had sought
accommoda-tions for medical conditions and alleged that the state
both failed to ac-commodate their disabilities and, in essence,
retaliated against them for asserting their rights.45
Congress certainly enjoyed the ability, under the Commerce
Clause, to regulate Alabama’s employment practices.46 Thus, the
question in Garrett was not whether Congress could impose a
nondiscrimination re-quirement on state employers, or even whether
Congress could confer a right to nondiscriminatory treatment on
state employees. As the Chief Justice was to explain, regardless of
whether private damages remedies are available, “Title I of the ADA
still prescribes standards applicable to the States”—standards that
could be enforced by the United States in actions for money
damages, since the Eleventh Amendment poses no bar to suits brought
by the United States,47 and by private attorneys general seeking
only injunctive relief under the Ex parte Young fiction.48
43. Id. § 12112(b)(5)(A). 44. Section 107(a) of the ADA provides
that the remedies set forth in various provisions of the Civil
Rights Act of 1964 “shall be the . . . remedies . . . this
subchapter provides . . . to any person alleging discrimination on
the basis of disability.” Id. § 12117(a). Section 102 of the Civil
Rights Act of 1991 pro-vides, in pertinent part, that
in an action brought by a complaining party . . . as provided in
section 107(a) of the Americans with Disabilities Act . . . against
a respondent who engaged in unlawful intentional discrimination
(not an employment practice that is unlawful because of its
disparate impact) . . . the complaining party may recover [certain
kinds of] compensatory and punitive damages . . . in addition to
any [equitable] relief authorized . . . .
42 U.S.C. § 1981(a)(2). 45. See Garrett, 531 U.S. at 362. 46.
See id. at 374 n.9; see also, e.g., Alden v. Maine, 527 U.S. 706,
759 (1999) (reaffirming that Maine is bound by the substantive
requirements of the Fair Labor Standards Act (FLSA) even if it is
not ame-nable to private damages suits); EEOC v. Wyoming, 460 U.S.
226, 243 (1983) (upholding the Commerce Clause basis for applying
the Age Discrimination in Employment Act to state employers). 47.
The United States is even entitled to pursue victim-specific relief
(that is, damages that will be paid to the private victim). Cf.
EEOC v. Waffle House, 534 U.S. 279, 297–98 (2002) (permitting the
EEOC to seek relief under the ADA on behalf of an individual who is
himself barred by an arbitration agreement from seeking a judicial
remedy); Alden, 527 U.S. at 759 (noting that the United States may
prosecute a lawsuit under the Fair Labor Standards Act on behalf of
state employees even if the Eleventh Amendment bars the employees
themselves from bringing such a lawsuit). 48. Garrett, 531 U.S. at
374 n.9 (citing Ex parte Young, 209 U.S. 123 (1908)). Under Ex
parte Young, plaintiffs can sue state officials in their
“individual” capacity seeking injunctions forbidding them from
violating federal law. (Oddly enough, it is only because the
officials are engaged in “state action” that their acts violate the
Constitution in the first place.) Because states can act only
through their offi-cials, Ex parte Young in effect can prevent the
state from engaging in future constitutional violations. As several
commentators have suggested, the presence of the Ex parte Young
fiction is necessary to the
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But the Commerce Clause would not authorize the remedial scheme
Congress had enacted, which contemplated damages lawsuits by
individuals who had suffered discrimination. So the Court
confronted the question whether the Equal Protection Clause of the
Fourteenth Amendment also provided a source of congressional power
to enact the ADA.49
The Court held that it did not.50 It reviewed prior decisions
regarding the Fourteenth Amendment claims of disabled individuals,
noting that such claims “incur[red] only the minimum
‘rational-basis’ review applica-ble to general social and economic
legislation,” rather than the heightened forms of scrutiny
triggered by discrimination against suspect classes.51 As virtually
everyone knows, with a few notable exceptions,52 the standard of
review is the whole ballgame. Keeping down the costs of government
pro-grams or services is a legitimate government purpose, even if
it is not a suf-ficiently important or compelling one to justify
use of a suspect characteris-tic, such as race or sex.53 Thus, the
Garrett Court explained, it might be “entirely rational (and
therefore constitutional) for a state employer to conserve scarce
financial resources by hiring employees who are able to use
existing facilities,” rather than accommodating disabled
individuals.54 In short, the Court distinguished between
permissible discrimination against the disabled and irrationally
invidious discrimination; only the lat-ter violates the Equal
Protection Clause.55 And the Court saw little evi-dence in the
legislative record of a pattern of pervasive, unconstitutional
discrimination.56
There are two discrete aspects to Congress’ enforcement power
un-der section 5: the preventative and the corrective. Under the
preventative prong, Congress can enact legislation that reaches
beyond conduct pro-scribed by the Fourteenth Amendment itself if
the statute “exhibit[s] con-gruence and proportionality between the
injury to be prevented or reme-died and the means adopted to that
end.”57 Under the corrective prong, Congress can create remedies
for denials of constitutional rights them-selves. Section 2 of the
Voting Rights Act of 1965, which prohibits elec-toral practices
that have a disparate impact without requiring proof of a Court’s
current robust reading of the Eleventh Amendment, because Ex parte
Young enables courts to regulate states indirectly, while the
Eleventh Amendment preserves a formal sovereign immunity. See John
C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section
1983, 84 VA. L. REV. 47 (1998); John C. Jeffries, Jr., The
Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87 (1999);
Henry Paul Monaghan, The Sovereign Immunity “Exception,” 110 HARV.
L. REV. 102 (1996). 49. Garrett, 531 U.S. at 364. 50. Id. at 374.
51. See id. at 366 (citing Cleberne v. Cleberne Living Ctr., 473
U.S. 432, 446 (1985)). 52. One of which, of course, involved
discrimination against the disabled. See Cleberne, 473 U.S. at
447–50. 53. See, e.g., Frontiero v. Richardson, 411 U.S. 677
(1973). 54. Garrett, 531 U.S. at 372. 55. See id. at 366–72. 56.
Id. 57. Id. at 365 (quoting City of Boerne v. Flores, 521 U.S. 507,
520 (1997)).
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racially discriminatory purpose (the touchstone of a
constitutional viola-tion), is an example of preventative or
prophylactic legislation.58 By con-trast, § 198359 is a corrective,
or purely remedial, statute. Section 1983 “is not itself a source
of substantive rights, but a method for vindicating fed-eral rights
elsewhere conferred.”60 It authorizes suits for damages and
in-junctive relief against persons acting under color of state law
who deprive individuals of rights secured by the Constitution and
federal laws.
Garrett conflates these two aspects, perhaps because Congress
and the litigants did as well. The Court’s analysis focuses almost
exclusively on the question whether the ADA’s provisions are
appropriate preventative legislation: was there a sufficient risk
of unconstitutional discrimination against the disabled to justify
a statute that sweeps more broadly to bar constitutionally
permissible discrimination as well? In an earlier decision, the
Court had held that “[p]reventive measures prohibiting certain
types of laws may be appropriate when there is reason to believe
that many of the laws affected by the congressional enactment have
a significant likelihood of being unconstitutional.”61 If there is
little risk of unconstitutional con-duct, then section 5 provides
an insufficient basis for overinclusive legisla-tion. I disagree
with the majority’s conclusion, largely for the reasons given in
Justice Breyer’s dissent: the Court should defer more to
congres-sional fact finding in section 5 cases, and Congress had an
adequate basis here for concluding that the ADA was appropriate
legislation.62 Still, the general principle—that the scope of
prophylactic measures should depend on the degree of risk of
unconstitutional conduct—seems fairly straight-forward.
But that does not answer the question of what remedial tools
Con-gress can properly deploy in the face of actual constitutional
violations. Suppose there were only scattered examples of
unconstitutional conduct—by hypothesis, not enough to justify a ban
on constitutionally innocuous activities. Can Congress nonetheless
enforce the core constitutional com-mands of the Fourteenth
Amendment through private attorneys general? That is, can Congress
abrogate a state’s Eleventh Amendment immunity
58. For an extensive discussion of the relationship between the
Voting Rights Act and the enforce-ment clauses, see Pamela S.
Karlan, Two Section Twos and Two Section Fives: Voting Rights and
Reme-dies After Flores, 39 WM. & MARY L. REV. 725 (1998). 59.
Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983 (1994). 60. Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979). 61. City of Boerne, 521 U.S. at 532; see City of
Rome v. United States, 446 U.S. 156, 177 (1980) (up-holding a
provision of the Voting Rights Act of 1965 that prohibits voting
practices with a racially dispa-rate impact, even though the
Fourteenth and Fifteenth Amendments prohibit only purposeful racial
dis-crimination, on the grounds that the regulated jurisdictions
had a history of invidious behavior). 62. Garrett, 531 U.S. at 377
(Breyer, J., dissenting).
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and provide a damages remedy for a state’s actual violations of
the Equal Protection Clause regardless of the volume of
constitutional violations? The Court’s decision in Garrett, like
its prior Eleventeenth Amendment decisions,63 suggests the Court’s
reluctance to contemplate purely remedial abrogation. The Court
seems to treat the Eleventh Amendment and the scope of section 1 of
the Fourteenth Amendment as placing separate limi-tations on
Congress’s section 5 powers. It shifts imperceptibly from
cir-cumscribing the scope of Congress’s preventative or
prophylactic powers, to restricting the reach of Congress’s ability
to specify remedies for core violations. In other words, the
Court’s recent decisions turn Fitzpatrick on its head. There, the
Court saw the later-enacted Fourteenth Amendment as a limitation on
the sovereign immunity recognized by the Eleventh Amendment.64 Now,
the Court sees the Eleventh Amendment as a curb on the
Fourteenth.
Perhaps this turnaround can be laid at Congress’s feet because
the challenged statutes have not distinguished between actions
Congress can regulate only under the Commerce Clause and those it
can regulate under both the Commerce Clause and the Fourteenth
Amendment.65 But there are other statutes that do make such a
distinction. For example, the Civil Rights Act of 1991 provides for
compensatory and punitive damages in employment discrimination
cases brought under Title VII of the Civil Rights Act of 1964 when
plaintiffs prove that the defendant “engaged in unlawful
intentional discrimination,” while providing equitable relief alone
for plaintiffs who show only a disparate impact.66 The protected
classes under Title VII are all entitled to some form of heightened
scrutiny under the Equal Protection Clause. Thus, intentional
discrimination against them is presumptively unconstitutional.
Abrogation of sovereign immu-nity here, then, would seem
essentially remedial rather than preventative. Certainly, if the
Act were amended to provide for damages when defen-dants engaged in
“unconstitutional intentional discrimination,” it is diffi-cult to
justify an Eleventh Amendment constraint on congressional
en-forcement power.67
One perhaps helpful way of posing this question is to ask
whether Congress would have the power to amend § 1983 to authorize
suits against
63. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Coll.
Sav. Bank v. Fla. Prepaid Postsec-ondary Educ. Expense Bd., 527
U.S. 666 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v.
Coll. Sav. Bank, 527 U.S. 627 (1999). 64. Fitzpatrick v. Bitzer,
427 U.S. 445, 456 (1976). 65. Of course, that confusion might be
laid at the Court’s feet when it comes to statutes enacted prior to
Seminole Tribe, particularly those enacted after Pennsylvania v.
Union Gas, 491 U.S. 1 (1989)—which Seminole Tribe overruled—had
suggested Congress could use its Article I powers to abrogate
states’ sovereign immunity. 66. 42 U.S.C. § 1981a(a)(1) (2000). 67.
Cf. infra text accompanying notes 86–88 (describing the Court’s
apparent approval of Con-gress’s decision to abrogate state
sovereign immunity in cases brought under Title VI alleging
intentional racial discrimination).
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states themselves for deprivations of constitutional rights.68
In Will v. Michigan Department of State Police,69 the Court held as
a matter of statu-tory construction that § 1983 does not reach
states (or state officials acting in their official, as opposed to
their personal, capacity).70 But nothing in Will suggested that
Congress would have lacked the power to include states within §
1983’s purely corrective ambit.
There is one additional aspect of the Court’s Eleventeenth
Amend-ment cases that sheds light on its view of private attorneys
general. The Court has repeatedly softened the bite of its Eleventh
Amendment hold-ings by noting that damages remedies are not
foreclosed altogether: the federal government retains the right to
seek damages on behalf of injured individuals.71 But the Court sees
this latter class of lawsuits as different in an important
respect:
The difference between a suit by the United States on behalf of
the employees and a suit by the employees implicates a rule that
the National Government must itself deem the case of sufficient
impor-tance to take action against the State; and history,
precedent, and the structure of the Constitution make clear that,
under the plan of the [Constitutional] Convention, the States have
consented to suits of the first kind but not of the second.72
The key assumption underlying the Court’s position seems to be
the equation of importance with centralized enforcement. Only the
federal government’s willingness to use its own resources and send
its own lawyer to prosecute a case truly shows that “the federal
interest in compensating [citizens] . . . for alleged past
violations of federal law is [actually] compel-ling . . . .”73
Otherwise, Congress is engaged in cheap talk—a sort of un-funded
mandate.
That defies the central idea behind the private attorney
general—that Congress might decide that decentralized enforcement
better vindicates civil rights policies “that Congress considered
of the highest priority.”74 For example, in explaining why § 5 of
the Voting Rights Act of 1965 should be construed to permit private
lawsuits, as well as the lawsuits by
68. Section 1983 also authorizes lawsuits for deprivations of
rights secured by “the laws”—essentially federal statutes—and these
sorts of lawsuits would presumably run afoul of Seminole Tribe and
Alden, because Congress could not abrogate states’ immunity for
denial of rights secured by laws whose basis was Congress’s Article
I power. 69. 491 U.S. 58 (1989). 70. Id. at 69–71. In an earlier
case, Edelman v. Jordan, 415 U.S. 651 (1974), the Court had held
that Congress had not clearly indicated an intention that § 1983
abrogate states’ Eleventh Amendment immu-nity. 71. See, e.g., Bd.
of Trustees. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9
(2001) (noting that even though the Eleventh Amendment bars ADA
damages lawsuits by private individuals, the pro-hibitions it
imposes “can be enforced by the United States in actions for money
damages”); Alden v. Maine, 527 U.S. 706, 759 (1999) (under the
FLSA, 29 U.S.C. § 216(c) (2000), the Secretary of Labor can seek
damages on behalf of a worker whose rights were violated). 72.
Alden, 527 U.S. at 759–60. 73. Id. at 759. 74. Newman v. Piggie
Park Enters., 390 U.S. 400, 402 (1968) (per curiam).
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the Attorney General expressly authorized by the Act,75 the
Court noted that
[t]he Act was drafted to make the guarantees of the Fifteenth
Amendment finally a reality for all citizens. . . . The achievement
of the Act’s laudable goal could be severely hampered, however, if
each citizen were required to depend solely on litigation
instituted at the discretion of the Attorney General. For example,
the provi-sions of the Act extend to States and the subdivisions
thereof. The Attorney General has a limited staff and often might
be unable to uncover quickly new regulations and enactments passed
at the vary-ing levels of state government. It is consistent with
the broad pur-pose of the Act to allow the individual citizen
standing to insure that his city or county government complies with
the [Act].76
Put simply, the major effect of permitting only federally
initiated law-suits is to decrease the total amount of enforcement
of valid congressional regulation. Presumably, that will increase
the number of uncorrected vio-lations, leaving the right less
completely protected. Just as “[t]o the extent that a citizen’s
right to vote is debased, he is that much less a citizen,”77 so
too, to the extent that the ability to enforce a right is debased,
it is that much less a right. The Eleventh Amendment may erect only
a formalistic barrier to enforcing federal rights—and, with the
availability of § 1983 damages actions and Ex parte Young suits for
injunctive relief, only a po-rous barrier at that—but if the
Amendment has any bite, that bite cuts deep into the heart of the
private attorney general.
II. ALEXANDER V. SANDOVAL AND DISIMPLIED RIGHTS OF ACTION
The Eleventeenth Amendment cases represent a forthright judicial
rejection of congressional authority to deputize private attorneys
general: the Supreme Court held that the Constitution does not
permit Congress to require the courts to hear certain kinds of
claims. By contrast, the Su-preme Court’s other recent attacks on
private attorneys general purport to involve statutory
interpretation. Here too, however, the Court’s decisions turn
Federalist No. 78 on its head. Alexander v. Sandoval78 provides a
par-ticularly good illustration of how dangerously unhelpful the
courts can be when the executive “depend[s] on the aid of the
[judicial] arm . . . for the efficacy of its judgments.”79
Sandoval concerned the existence of a private right of action to
en-force disparate-impact regulations promulgated under Title VI of
the Civil
75. I discuss the question of implied rights of action in more
detail in the next section of this Article. See infra Part II. 76.
Allen v. State Bd. of Elections, 393 U.S. 544, 556–57 (1969). 77.
Reynolds v. Sims, 377 U.S. 533, 567 (1964). 78. 532 U.S. 275
(2001). 79. THE FEDERALIST NO. 78, supra note 3, at 465 (stating
that the judiciary relies on the executive arm, including for the
efficacy of its judgments).
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Rights Act of 1964.80 Section 601 provides that no person shall,
“on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any pro-gram or activity” receiving federal
funds.81 Section 601 itself, however, reaches only purposeful
discrimination.82 A different provision, § 602, au-thorizes federal
agencies to “effectuate” § 601 by promulgating administra-tive
rules and regulations.83 At least forty federal agencies—including
most notably the Departments of Justice, Transportation, and
Educa-tion—have adopted regulations pursuant to § 602 that prohibit
not only practices that have a discriminatory purpose, but also
practices that have a discriminatory effect.84 Thus, regulations
promulgated under § 602 often prohibit conduct that would not
violate § 601 itself (or, for that matter, the Equal Protection
Clause).
Title VI does not explicitly provide a cause of action to
individuals who are denied the rights it protects. Nonetheless, in
an earlier case, Can-non v. University of Chicago, the Court noted
approvingly that lower-court opinions had construed Title VI to
create a private remedy for violations of § 601.85 Congress later
ratified the Court’s observation in Cannon and expressly abrogated
states’ sovereign immunity against suits to enforce Ti-tle VI.86
Moreover, even before Cannon, in the Civil Rights Attorney’s Fees
Awards Act of 1976, Congress had expressly provided that “[i]n any
action or proceeding to enforce a provision of . . . title VI of
the Civil Rights Act of 1964, the court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.”87 This provision
explicitly contemplates enforcement by parties other than the
federal government.88
Finding private rights of action under § 602, however, is one
step further removed, and raises questions analogous to those posed
in the Eleventeenth Amendment cases. First, are the regulations
valid preven-
80. See 42 U.S.C. §§ 2000d to 2000d-6 (2000). 81. Id. § 2000d.
82. See Alexander, 532 U.S. at 280–81 (summarizing the tangled line
of cases in which a majority of the Justices agreed that § 601
reaches only purposeful discrimination). Section 601 goes beyond
the con-stitutional command of the Equal Protection Clause to the
extent that it reaches private actors who are recipients of federal
funds. 83. 42 U.S.C. § 2000d-1. 84. See, e.g., 28 C.F.R. §
42.104(b)(2) (1999) (Department of Justice regulation); 34 C.F.R. §
100.3(b)(2) (2000) (Department of Education regulation); 49 C.F.R.
§ 21.5(b)(2) (2000) (Department of Transportation regulation). 85.
441 U.S. 677, 696 (1979). 86. See 42 U.S.C. § 2000d-7. That
abrogation, as long as it is limited to § 601 suits, causes no
consti-tutional difficulties: § 601 itself forbids only those state
actions that would violate the Equal Protection Clause. See Regents
of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (Powell,
J.); id. at 325, 328, 352 (White, Brennan, Marshall, &
Blackmun, JJ., concurring in part and dissenting). Thus, the
entitle-ment to private damages claims falls squarely within
Fitzpatrick. 87. Pub. L. No. 94-559, § 2, 90 Stat. 2641, 2641
(codified as amended at 42 U.S.C. § 1988(b)). 88. See also Julia
Lamber, Private Causes of Action Under Federal Agency
Nondiscrimination Stat-utes, 10 CONN. L. REV. 859, 873–81 (1978)
(describing the somewhat inconclusive legislative history of Title
VI and § 1988).
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tative measures insofar as they exceed the prohibitions of § 601
itself? Second, would finding a private right of action for damages
for a § 602 violation be an appropriate way of enforcing § 601?
Although Justice Scalia was clearly itching to answer the first
ques-tion in the negative, thereby dismantling the entire disparate
impact regu-latory apparatus,89 he apparently could not muster a
majority for that proposition, and so he assumed the validity of
disparate impact regulations for purposes of deciding the secondary
question whether an individual in-jured by the violation of such a
regulation could bring suit.90
Sandoval concerned a challenge to Alabama’s newly adopted policy
of administering the written portion of its driver’s license
examination only in English.91 The plaintiff brought a class action
suit seeking declaratory and injunctive relief.92 The named
defendants were the Alabama Depart-ment of Public Safety and its
director, in his official capacity.93 The plain-tiff argued, among
other things, that the English-only policy violated her rights
under § 602.94
Over the past forty years, the Supreme Court has taken
strikingly dif-ferent positions on the question whether to find an
implied right of action when Congress has not expressly created
one. At the time Title VI was enacted, the Court was quite
favorably inclined toward finding private rights, seeing it as “the
duty of the courts to be alert to provide such reme-dies as are
necessary to make effective the congressional purpose” embod-ied in
a statute.95 But as Justice Scalia breezily observed, “the heady
days in which this Court assumed common-law powers to create causes
of ac-tion—decreeing them to be ‘implied’ by the mere existence of
a statutory or constitutional prohibition”—are gone.96 Recently,
the Court has been quite reluctant to find private rights of action
absent clear indications of a congressional intent to authorize
them. This trend culminated, perhaps, in Correctional Services
Corp. v. Malesko,97 where the Supreme Court re-fused to find an
implied right of action even with respect to constitutional
violations, essentially limiting the principle it had recognized
thirty years
89. See Alexander v. Sandoval, 532 U.S. 275, 281–82, 286 n.7
(2001). 90. Id. at 282. 91. Id. at 275. Apparently, forty-eight
other states and the District of Columbia administered the written
portion of the driver’s license examination “in a multitude of
foreign languages,” which makes more sense than one might
originally think, given that there is apparently “no evidence that
non-English speakers [have] posed a greater safety risk or had more
accidents than other motorists.” Sandoval v. Hagen, 7 F. Supp. 2d
1234, 1242 (M.D. Ala. 1998), aff’d, 197 F.3d 484 (11th Cir. 1999),
rev’d on other grounds sub nom. Alexander, 532 U.S. 275. 92.
Sandoval, 7 F. Supp. 2d at 1245. 93. Id. 94. Id. 95. J.I. Case Co.
v. Borak, 377 U.S. 426, 433 (1964). 96. Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). 97. 534
U.S. 61 (2001).
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earlier in Bivens v. Six Unknown Agents of Federal Bureau of
Narcotics,98 to a few narrowly defined circumstances.99
When the Alexander v. Sandoval Court analyzed the text and
struc-ture of Title VI, it concluded that § 602 was “focuse[d]
neither on the indi-viduals protected nor even on the funding
recipients being regulated, but on the agencies that will do the
regulating.”100 Thus, the Court explained, § 602 should not be seen
as a right-creating provision in the first place.101
The Court found reinforcement for this view in the explicit
enforce-ment provisions of § 602. Section 602 authorized agencies
to enforce their regulations by terminating funding to programs
that violate their regula-tions.102 But it cocooned this
enforcement authority in a web of elaborate procedural
requirements.103 A general canon of statutory construction counsels
that the express provision of one method of enforcement be-speaks a
congressional intent to preclude others.104 Moreover, the contrast
between the difficulty of pursuing administrative sanctions and the
stream-lined judicial process afforded by a private right of action
suggested to the Court that Congress did not intend private
lawsuits to enforce § 602 regu-lations.105
Once again, the Court’s decision essentially disarms private
attor-neys general. Three aspects of the Court’s opinion are
especially noteworthy. First, the Court focused its attention on
whether § 602 creates individual rights, rather than whether it
contemplates allowing private parties to enforce the obligations
that regulations impose on the recipients of federal funds.106 By
posing the question this way, the Court ignores a central feature
of the private attorney general: her authority to sue is, at least
in part, derivative of the broader public interest in vindi-cating
an important governmental policy. That is, we might find an
im-plied right of action because of the “social benefits”107 these
lawsuits pro-duce and locate the ability to bring that lawsuit in
individuals who are adversely affected by the challenged policy
because we think they have the right incentives to litigate the
question vigorously. As Judge Frank explained when he originally
coined the term “private attorney general,” in situations where the
federal government “can constitutionally author- 98. 403 U.S. 388
(1971). In Bivens, the Court found an implied right of action under
the Fourth Amendment, permitting an individual whose rights had
been violated during an unconstitutional search by federal officers
to bring a damages action. Bivens found an implied right that
parallels in significant respects the express cause of action
provided by 42 U.S.C. § 1983 for individuals whose constitutional
rights are violated by state officers. 99. Malesko, 534 U.S. at
519–21. 100. Alexander v. Sandoval, 532 U.S. 275, 289 (2000). 101.
Id. 102. See 42 U.S.C. § 2000d-1 (2000). 103. See Alexander, 532
U.S. at 289–90 (summarizing the various restrictions on
administrative en-forcement). 104. See id. at 290. 105. See id. at
289–91. 106. See id. at 279. 107. City of Riverside v. Rivera, 477
U.S. 561, 574 (1986).
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ize one of its own officials, such as the Attorney General, to
bring a pro-ceeding to prevent another official from acting in
violation of his statu-tory powers,”108 Congress can confer that
same ability “to vindicate the interest of the public or the
government . . . even if the sole purpose is to vindicate the
public interest.”109 In that sense, as Judge Frank immedi-ately
went on to point out, private attorneys general resemble the bounty
hunters of traditional qui tam actions.110 Thus, even if § 602 is
not read to create the sort of legal entitlements that generally
accord an individual the right to bring suit, that does not
necessarily answer the question whether Congress contemplated
private enforcement of § 602 prohibi-tions on discriminatory state
behavior, particularly when a plaintiff is seeking only injunctive
relief.
Second, a striking feature of the current Court is its refusal
to think critically about how to interpret statutes that were
enacted under what Alexander v. Sandoval dismissively calls the
“ancien regime”111—when ear-lier Supreme Courts held a dramatically
different view of congressional powers and the importance of
vindicating civil rights claims. Today, if Congress does not
provide for an express private right of action against state
agencies, it surely is on notice that the current Court’s Eleventh
Amendment jurisprudence and hostility to implied rights of action
make it unlikely the courts will supply a private judicial remedy.
It thus seems rea-sonable for courts faced with congressional
silence to infer congressional aversion. But an earlier Supreme
Court explicitly recognized that during the Second Reconstruction,
Congress had assumed private lawsuits would provide a central
pillar of the overall enforcement machinery.112 Thus, a genuine
attempt to implement congressional intent requires asking what the
enacting Congress assumed its words meant. In the case of Title VI,
an earlier Supreme Court—ironically also in a case captioned
Alexander—declared that Congress had “delegated to the agencies in
the first instance the complex determination of what sorts of
disparate impacts upon minori-ties constitut[e] sufficiently
significant social problems, and [are] readily enough remediable,
to warrant altering the practices of the federal grant-ees that
[have] produced those impacts.”113 The legislation of the Second
Reconstruction is honeycombed with reliance on private enforcement
of antidiscrimination mandates, including in cases where the
primacy en-
108. Associated Indus. v. Ickes, 134 F.2d 694, 704 (2d Cir.
1943). 109. Id. (emphasis added). 110. Id. at 704–05. 111.
Alexander, 532 U.S. at 287. 112. See, e.g., Bradley v. Sch. Bd. of
Richmond, 416 U.S. 696, 718 (1974); Allen v. State Bd. of
Elec-tions, 393 U.S. 544, 556–57 (1969); Newman v. Piggie Park
Enters., 390 U.S. 400, 401 (1968). 113. Alexander v. Choate, 469
U.S. 287, 293–94 (1985).
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forcement device is administrative.114 And § 602 should be read
against this backdrop.
Read that way, § 602’s inclusion of a novel administration
remedy—cutting off funds to noncompliant programs—hardly suggests a
congres-sional intention to preclude private lawsuits. Of course,
the cumbersome procedural apparatus surrounding the cutoff
provision suggests that Congress intended funds cutoffs only in
egregious cases. A funds cutoff, after all, is a blunderbuss
weapon: while it operates directly against the program receiving
federal funds, its effects ultimately will be felt by the people
whom federal funding was intended to benefit.
But there are two quite different sets of inferences one might
draw from this reluctance. Alexander v. Sandoval seems to see a
congressional reluctance to permit any enforcement, absent the kind
of egregious, sys-temic violation that might prompt wholesale
termination of federal assis-tance.115 But it seems equally
plausible to think that Congress intended the funds cutoff as a
supplement to the default remedy for isolated
viola-tions—fine-grained injunctive relief targeting only the
precise practice that offends the regulations. That is, the funds
cutoff was made cumbersome, not because Congress wanted to keep
down the overall level of § 602 en-forcement, but because Congress
assumed that most enforcement could be handled by more precise
remedies.
Third, across a variety of doctrines, from its anticommandeering
cases to its Eleventh Amendment decisions, the current Court
expresses a strong commitment to a particular version of political
accountability. In this view, the fact that enforcement of
congressional directives is costly is a good thing. It keeps
Congress from imposing too many duties on the states.116 Put
another way, the current Court likes the idea of a
regulation-remedy gap. The idea of the private attorney general,
however, stands in sharp contrast to this vision. Reliance on
private attorneys general elevates full enforcement of broad policy
goals over formal political accountability for discrete enforcement
decisions. It assumes, of course, that the courts are sympathetic
to Congress’s underlying policy goals. Perhaps, then, it is not
surprising that a Supreme Court that seems suspicious of the
substantive goals Congress is pursuing is reluctant to see those
goals pursued vigor-ously.
114. See Pamela S. Karlan, Easing the Spring: Strict Scrutiny
and Affirmative Action After the Redis-tricting Cases, 43 WM. &
MARY L. REV. 1569, 1599 n.133 (2002) (describing the similarity
between § 602 cases and the administrative remedy in certain cases
under the Voting Rights Act). 115. See Alexander v. Sandoval, 532
U.S. 275 (2000). 116. See supra text accompanying notes 71–73
(describing the distinction the Court draws between
government-initiated and private lawsuits as a test of how
important Congress really thinks an interest is).
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III. CIRCUIT CITY STORES, INC. V. ADAMS AND SHORT-CIRCUITING THE
PROCESS OF PUBLIC ADJUDICATION
While Marbury may have insisted that “[t]he province of the
court is, solely, to decide on the rights of individuals,”117 the
private attorney gen-eral rests on a very different vision of
litigation. In this vision, courts not only resolve the particular
dispute before them, but also “explicate and give force to the
values embodied in authoritative texts such as the Consti-tution
and statutes.”118 The private attorney general can assist this
project in two ways. First, if her lawsuit persuades a defendant to
change its be-havior or results in equitable relief, she vindicates
the public interest by bringing that defendant into compliance with
constitutional or statutory commands. And similarly situated
individuals will often benefit directly from the private attorney
general’s success, even if the lawsuit is not for-mally a class
action. Second, if a private attorney general obtains a judg-ment
in her favor, that judgment will often be accompanied by a judicial
decision that articulates a rationale for her victory that extends
beyond her particular case. The creation of binding precedents is a
beneficial byprod-uct of litigation, which may explain why private
attorneys general are often subsidized.119 A private attorney
general whose activities produce prece-dent is thus in some
important ways more effective than a private attorney general whose
activities produce only local change.
Many commentators over the years have relied on this insight to
criti-cize various alternatives to adjudication for their failure
to produce public precedent.120 In Gilmer v. Interstate/Johnson
Lane Corp., however, the Supreme Court rejected the argument that
civil rights claims cannot be the
117. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). 118.
Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1085 (1984).
119. See John C. Coffee, Jr., No Exit?: Opting Out, the Contractual
Theory of the Corporation, and the Special Case of Remedies, 53
BROOK. L. REV. 919, 970 (1988). For a classic law-and-economics
treat-ment of precedent as an externality of litigation, see
William M. Landes & Richard A. Posner, Adjudica-tion as a
Private Good, 8 J. LEGAL STUD. 235 (1979). For a classic
public-values treatment of precedent creation as a central aspect
of adjudication, see Owen M. Fiss, The Forms of Justice, 93 HARV.
L. REV. 1 (1979). For a discussion of the ways in which judicial
decisions can form an “interpretive network exter-nality” that
clarifies otherwise ambiguous legal rules, see Michael Klausner,
Corporations, Corporate Law, and Networks of Contracts, 81 VA. L.
REV. 757, 761, 778–79 (1995). 120. See, e.g., Fiss, supra note 110,
at 1085; Martin H. Malin, Privatizing Justice—but by How Much?:
Questions Gilmer Did Not Answer, 16 OHIO ST. J. ON DISP. RESOL. 589
(2001); see also John V. O’Hara, Comment, The New Jersey
Alternative Procedure for Dispute Resolution Act: Vanguard of a
“Better Way”?, 136 U. PA. L. REV. 1723, 1745–46 (1988) (“In the
context of considering private litigants as private attorneys
general charged with enforcing public law and its underlying
policies, the debilitating effect of compromise decisions becomes
clearer. A statute is a legislative policy choice, but without
subsequent judicial development through the public resolution of
disputes, that policy will remain stagnant, or per-haps wither
entirely. The ambiguous statutory language that frequently results
from legislative compro-mise remains with the understanding that
the courts will supply an interpretation. Even if initial
princi-ples are established through adjudication, permitting the
arbitration of an entire category of claims restricts further
evolution in that area of the law by reducing the number and
variety of claims presented to the courts.”). For a specific
discussion of this point with respect to employment discrimination
claims, see Geraldine Moohr, Arbitration and the Goals of
Employment Discrimination Law, 56 WASH. & LEE L. REV. 395,
398–99 (1999).
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subject of compulsory arbitration.121 Robert Gilmer was required
by his employer to register with several stock exchanges as a
securities represen-tative.122 A rule of one of those stock
exchanges required arbitration of any dispute between a registered
representative and employers such as Gilmer’s.123 When Gilmer later
tried to bring suit against his employer un-der the Age
Discrimination in Employment Act (ADEA),124 his employer moved to
compel arbitration instead.125
Gilmer argued that compelled arbitration would be inconsistent
with the ADEA’s purposes, since, as the Court itself had noted
earlier, “the ADEA is designed not only to address individual
grievances, but also to further important social policies.”126 But
the Court quickly dismissed this concern:
We do not perceive any inherent inconsistency between those
poli-cies, however, and enforcing agreements to arbitrate age
discrimi-nation claims. It is true that arbitration focuses on
specific disputes between the parties involved. The same can be
said, however, of judicial resolution of claims. Both of these
dispute resolution mechanisms nevertheless also can further broader
social pur-poses. . . . “So long as the prospective litigant
effectively may vindi-cate [his or her] statutory cause of action
in the arbitral forum, the statute will continue to serve both its
remedial and deterrent func-tion.”127
The Court was relatively unconcerned with the possibility that
arbitration would “stifl[e] . . . the development of the law,”
because even if Gilmer’s dispute failed to produce useful
precedent, “judicial decisions addressing ADEA claims will continue
to be issued because it is unlikely that all or even most ADEA
claimants will be subject to arbitration agreements.”128 For one
thing, even if private individuals were prevented from seeking
ju-dicial decisions, the Court noted that “arbitration agreements
will not pre-clude the EEOC from bringing actions seeking
class-wide and equitable relief.”129 The underlying assumption,
then, of the Court’s approach was that diverting individual claims
out of the adjudicatory process would not substantially impair
vindication of important substantive interests. That is,
121. 500 U.S. 20 (1991). 122. Id. at 23. 123. Id. 124. 29 U.S.C.
§§ 621–634 (2000). 125. For a variety of reasons summarized in
David S. Schwartz, Enforcing Small Print to Protect Big Business:
Employee and Consumer Rights Claims in an Age of Compelled
Arbitration, 1997 WIS. L. REV. 33, 43–50, arbitration is often a
more employer-friendly forum for discrimination claims. 126.
Gilmer, 500 U.S. at 27; see EEOC v. Wyoming, 460 U.S. 226, 231–32
(1983) (describing how the ADEA reflected congressional concern
with both “the individual and the social costs” of age
discrimina-tion). 127. Gilmer, 500 U.S. at 28 (quoting Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637
(1985)). 128. Gilmer, 500 U.S. at 32. 129. Id.
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even if Gilmer himself were unable to bring suit, there would
still be plenty of other private attorneys general, plus public
enforcement.
Gilmer rested on a “liberal federal policy,” embodied in the
FAA,130 favoring arbitration agreements.131 But it recognized an
express statutory exception to that policy: § 1 of the FAA provides
that “nothing” con-tained in the Act “shall apply to contracts of
employment of seamen, rail-road employees, or any other class of
workers engaged in foreign or inter-state commerce.”132 How to
interpret § 1 was the issue presented by last Term’s decision in
Circuit City Stores, Inc. v. Adams.133
St. Clair Adams was hired by Circuit City, a nationwide consumer
electronics retailer, to work in its store in Santa Rosa,
California.134 As part of his employment application, Adams signed
a form agreeing to arbi-trate all disputes, including claims under
federal civil rights statutes.135 Two years later, Adams filed suit
in state court, alleging that Circuit City and three of its
supervisors had subjected him to on-the-job harassment and
retaliation because of his sexual orientation in violation of
California law.136 Circuit City then filed suit in federal court,
seeking to enjoin the state-court action and to compel arbitration
pursuant to the FAA.137
Circuit City was undeniably a business engaged in interstate
com-merce—indeed, that was the basis of its claim that the FAA
compelled ar-bitration.138 But the Supreme Court held, by a 5–4
vote, that Adams was not a worker “engaged in foreign or interstate
commerce” within the meaning of § 1.139 Only those employees who
could be described as “transportation workers” were exempt from
compulsory arbitration clauses.140 The term “workers engaged in
foreign or interstate commerce,” the Court explained, constituted a
“residual phrase,” in a list beginning
130. 9 U.S.C. §§ 1–16 (2000). 131. Gilmer, 500 U.S. at 25
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24 (1983)). 132. 9 U.S.C. § 1; see Gilmer, 500 U.S. at 25
n.2. Although the dispute subject to arbitration in Gil-mer was an
employment-related claim, the arbitration clause at issue was in
Gilmer’s securities registra-tion application and not in his
employment agreement with Interstate. Thus, the Court declined to
ad-dress the applicability of § 1 to Gilmer’s case. Id. 133. 532
U.S. 105 (2001). 134. Id. at 110. 135. Had Adams not signed the
form, Circuit City would not have considered him for employment. To
the extent that an entire class of employers has policies like
Circuit City’s, Gilmer’s assumption that arbitration agreements
will not foreclose judicial elaboration of a statute’s general
command seems mis-placed. 136. See Brief for Respondent at 1,
Circuit City Stores, Inc., 532 U.S. 105, available at LEXIS, Genfed
Library, Briefs File. Adams raised no federal-law claims. 137.
Circuit City Stores, Inc., 532 U.S. at 110. 138. The FAA’s coverage
provision, § 2, provides in pertinent part that “[a] written
provision in any . . . contract evidencing a transaction involving
commerce to settle by arbitration a controversy there-after arising
out of such contract or transaction, . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
Thus, had the contract between Adams and Circuit City not involved
the kind of commerce that Congress could regu-late under its
Commerce Clause powers, the FAA would not apply in any event. 139.
Circuit City Stores, Inc., 532 U.S. at 119. 140. Id. at 109.
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with seamen and railroad workers.141 Since these workers are
themselves engaged in foreign or interstate commerce, in the most
literal sense of the phrase, there would have been no need to list
them specifically if the phrase included all such workers.
Thus,
[t]he wording of § 1 calls for the application of the maxim
ejusdem generis, the statutory canon that “[w]here general words
follow spe-cific words in a statutory enumeration, the general
words are con-strued to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.”142
Because Adams was not a transportation worker, he could be
compelled to arbitrate his claims. 143
The Court’s decision in Circuit City Stores, Inc. v. Adams, like
its de-cision in Alexander v. Sandoval, was a product of a deep
resistance to in-terpreting statutes in their historical context.
The Court recognized that the FAA had been enacted at a time when
congressional Commerce Clause power was narrower than it now is.144
Section 2 of the FAA pro-vided for enforcement of all arbitration
agreements “involving commerce” within Congress’s Commerce Clause
power.145 At the time, that category might plausibly have been
interpreted to include only contracts that di-rectly concerned the
foreign or interstate movement of goods and services (rather than
also including those concerned with either manufacturing or
intrastate commerce). So when § 1 excluded “contracts of employment
of seamen, railroad employees, or any other class of workers
engaged in for-eign or interstate commerce,”146 that might be read
in tandem with § 2 to suggest that Congress was also excluding from
the FAA all of the em-ployment contracts it would otherwise have
Commerce Clause authority to regulate. But while § 2’s enforcement
of arbitration agreements now ex-tends more broadly—to reach all
agreements that involve “commerce” in its contemporary, expansive,
sense—the Court held that § 1’s exemption should not shift in a
parallel fashion.147
In earlier decisions, the Supreme Court recognized that
plaintiffs in federal employment discrimination lawsuits “act as
‘private attorney[s] general,’ vindicating” “‘the large objectives’
of the relevant Act[s].”148 The upshot of Circuit City Stores, Inc.
v. Adams will surely be to decrease the amount of private
enforcement, particularly given employers’ increasing imposition of
arbitration requirements.149 141. Id. at 114. 142. Id. at 114–15
(citation omitted). 143. See id. at 119. 144. See id. at 115–16.
145. Id. at 111; see also 9 U.S.C. § 2 (2000). 146. 9 U.S.C. § 1;
see also Circuit City Stores, Inc., 532 U.S. at 112. 147. Circuit
City Stores, Inc., 532 U.S. at 114–18. 148. Indep. Fed’n of Flight
Attendants v. Zipes, 491 U.S. 754, 759 (1989) (citing Albemarle
Paper Co. v. Moody, 422 U.S. 405, 416 (1975)). 149. See Moohr,
supra note 102, at 398–99 (collecting recent statistical and
anecdotal evidence of an increasing insistence on compulsory
arbitration by employers).
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As with the Eleventeenth Amendment cases, the Court leaves open
the avenue of centralized federal enforcement. In this Term’s
decision in EEOC v. Waffle House, the Court held that an
arbitration agreement be-tween an employer and an employee cannot
bar the EEOC from pursuing even victim-specific judicial relief,
such as back pay, reinstatement, and damages under the ADA.150 The
EEOC, the Court explained, must have wide latitude to “choose cases
that best vindicate the public interest” and cannot be constrained
by an employer’s ability to force an individual em-ployee into
arbitration.151 But because the EEOC files very few lawsuits, even
in those cases where its investigation convinces it that an
employee’s claim of discrimination has merit,152 centralized
federal enforcement seems unlikely to provide the same overall
vindication of “[t]he broad, overriding societal interest shared by
employer, employee, and consumer . . . [in] effi-cient and
trustworthy workmanship assured through fair and . . . neutral
employment and personnel decisions.”153 Like the Court’s decisions
in the Eleventeenth Amendment cases and Alexander v. Sandoval, the
Court’s decision in Circuit City Stores, Inc. v. Adams preserves
the formal conduct rules, but undermines the practical enforcement
mechanism.
IV. BUCKHANNON BOARD & CARE HOME, INC. V. WEST VIRGINIA
DEPARTMENT OF HEALTH & HUMAN RESOURCES AND THROTTLING
THE CATALYST THEORY
Attorney’s fees are the fuel that drives the private attorney
general engine. Every significant contemporary civil rights statute
contains some provision for attorney’s fees,154 and in 1976,
Congress passed a comprehen-sive attorney’s fee statute that
provides for fees under the most important Reconstruction Era civil
rights statutes as well.155 The rationale for fee awards rests on
several interlocking considerations. First, most civil rights
150. 534 U.S. 279, 288 (2002). Since the EEOC and other federal
agencies have quite similar en-forcement powers under other federal
employment statutes, arbitration agreements presumably do not
constrain federally initiated judicial proceedings under those
statutes either. 151. Id. at 296 n.11. 152. See id. at 290 n.7
(reporting that although in fiscal year 2000, the EEOC found
reasonable cause to believe there was discrimination in 8,248 of
the 79,896 charges it received from employees, “it only filed 291
lawsuits and intervened in 111 others”). Overall, “the EEOC files
less than two percent of all antidis-crimination claims in federal
court. Indeed, even among the cases where it finds reasonable
cause, the EEOC files suit in less than five percent of those
cases.” Id. 153. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 259 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S.
792, 801 (1973)). 154. In its original form, the Civil Rights Act
of 1964, the cornerstone of the Second Reconstruction and the model
for later antidiscrimination statutes such as the ADA, provided for
fee awards to prevail-ing parties in cases brought under Title II
(governing public accommodations) and Title VII (governing
employment) but not under Title VI (governing federally funded
programs). The Civil Rights Attorney’s Fees Awards Act of 1976,
however, provides for attorney’s fees in Title VI cases as well.
See 42 U.S.C. § 1988(b) (2000). 155. 42 U.S.C. § 1988(b) (“In any
action or proceeding to enforce a provision of sections 1981,
1981a, 1982, 1983, 1985 and 1986 of this title . . . the court, in
its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs . .
. .”).
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plaintiffs are unable to afford counsel156 and without a fees
statute, the available counsel would be limited to attorneys
willing to represent them pro bono. Second, the absence of
statutory fees might skew attorneys’ se-lection of cases: they
might concentrate on cases involving the possibility of large
damages awards and the attendant contingent fee, and forego cases
which involve only equitable relief or where the right, while
impor-tant, is not easily translated into a large damages award for
the named plaintiffs.157 But this latter group of cases—especially
those involving structural injunctive relief—often do the most to
vindicate important socie-tal interests. They are the ones where
plaintiffs function most clearly as private attorneys general.
There is something sadly fitting about the very first decision
issued by the Rehnquist Court: it held that citizens who vindicate
their Title VI rights in the administrative forum to which
Alexander v. Sandoval consigns them cannot recover attorney’s
fees.158 In the ensuing fifteen years, the Rehnquist Court issued a
series of similarly parsimonious fees decisions.159 Last Term’s
decision in Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources160 marked yet a further
retrenchment.
The question presented in Buckhannon Home was whether a
plaintiff whose lawsuit prompts a defendant to change its conduct
“voluntarily”—that is, without an actual court order—is a
“prevailing party” and therefore statutorily entitled to recover a
reasonable attorney’s fee for the time spent on the litigation.161
After it was threatened with closure of its assisted-living care
facilities for failure to meet a state regulation, Buckhannon Home
brought a federal lawsuit claiming that the regulation violated the
Fair Housing Amendments Act of 1988162 and the ADA,163 and
sought
156. See S. REP. NO. 94-1011, at 1–3 (1976); H.R. REP. NO.
94-1558, at 1 (1976). 157. The Supreme Court’s decision in Memphis
Community School District v. Stachura, 477 U.S. 299 (1986), does
not permit the award of damages to vindicate the general value of
the constitutional right in question. So, for example, absent proof
of an actual injury, plaintiffs who show violations of such
consti-tutional entitlements as the right to procedural due process
are entitled only to nominal damages. See Carey v. Piphus, 435 U.S.
247 (1978). 158. See N.C. Dep’t of Transp. v. Crest St. Cmty.
Council Inc., 479 U.S. 6, 11 (1986) (holding that time spent in an
administrative proceeding to enforce Title VI regulations would not
entitle successful claimants to an attorney’s fee award). 159. See,
e.g., Farrar v. Hobby, 506 U.S. 103, 115 (1992) (suggesting that in
many cases, a plaintiff who recovers only nominal damages should be
entitled to no fees award at all because, although she has
vindicated her “‘absolute’ [i.e., abstract] right,” she has failed
to prove some central element of her claim for compensatory
damages); City of Burlington v. Dague, 505 U.S. 557, 567 (1992)
(rejecting the possibil-ity of a contingency multiplier); W. Va.
Univ. Hosps. v. Casey, 499 U.S. 83 (1991) (holding that plaintiffs
are not entitled to recover the costs of experts’ services as part
of their statutory attorney’s fee in the ab-sence of express
authorization). 160. 532 U.S. 598 (2001). 161. See id. at 600. 162.
42 U.S.C. §§ 3601–3631 (2000). 163. 42 U.S.C. §§ 12101–12213.
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declaratory and injunctive relief.164 Less than a month after
the district court denied the defendants’ motion for summary
judgment, the West Virginia Legislature repealed the regulation
Buckhannon Home had challenged. The defendants then moved to
dismiss the case as moot, and Buckhannon Home, which claimed that
its suit had triggered the statutory repeal, moved for attorney’s
fees as a “prevailing party” under the fees provisions of the FHAA
and the ADA, which follow the standard model provided by the 1964
Civil Rights Act and § 1988.165
By a 5–4 vote, the Supreme Court held a plaintiff cannot be a
“pre-vailing party” within the meaning of the fees statutes unless
it achieves “a court-ordered ‘change [in] the legal relationship
between [it] and the de-fendant.’”166 To be entitled to an award of
attorney’s fees, plaintiffs must either receive an adjudicated
judgment on the merits or persuade the de-fendant to enter into a
consent judgment that provides for some sort of fee award.167
Otherwise, their achievement “lacks the necessary judicial
im-primatur . . . .”168 Chief Justice Rehnquist’s opinion for the
Court down-played the negative effects of the decision on
plaintiffs’ ability to vindicate their rights. First, he suggested
that the danger of defendants unilaterally denying plaintiffs their
right to fees was limited to a small class of cases.169 That threat
“only materializes in claims for equitable relief, for so long as
the plaintiff has a cause of action for damages, a defendant’s
change in conduct will not moot the case.”170 Of course, as the
Chief Justice himself acknowledged in a footnote, there is a broad
class of claims for which damages are not even theoretically
available: those to which the Eleventh Amendment applies.171
Moreover, to the extent that suits seeking only eq-uitable relief
lie at the core of the vision of the private attorney general as
champion of the public interest, the Court’s theory countenances
cutting off the cases that particularly motivated Congress to
provide attorney’s fees. More systematically, the Court’s decision
reintroduces the skewing effect on case selection: civil rights
attorneys who want to safeguard the possibility of recovering fees
will choose lawsuits in which damages are
164. Buckhannon Home, 532 U.S. at 600–06. Buckhannon Home
originally also sought damages, but dropped this claim early on
when the defendants raised claims of sovereign immunity. See id. at
624 (Ginsburg, J., dissenting). 165. Id. at 601–03. 166. Id. at 604
(emphasis added) (quoting Tex. State Teachers Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792 (1989)). 167. In Evans v. Jeff
D., 475 U.S. 717, 742–43 (1986), the Supreme Court held that
defendants can offer consent judgments that are expressly
conditioned on a plaintiff’s waiver of his statutory right to
at-torney’s fees. In light of Jeff D., very few defendants are
likely to agree to consent judgments that either do not waive fees
entirely or do not fully resolve the fees question. See Marek v.
Chesney, 473 U.S. 1, 7 (1985) (noting that “‘[m]any a defendant
would be unwilling to make a binding settlement offer on terms that
left it exposed to liability for attorney’s fees in whatever amount
the court might fix on motion of the plaintiff’” (quoting Chesney
v. Marek, 720 F.2d 474, 477 (7th Cir. 1983))). 168. Buckhannon
Home, 532 U.S. at 605. 169. Id. at 608–09. 170. Id. 171. See id. at
609 n.10.
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available over lawsuits that involve only injunctive relief,
even if the latter lawsuits are more socially valuable.
Second, the Chief Justice suggested that the catalyst theory
might ac-tually have perverse consequences for plaintiffs. In a
no-catalyst theory world where fees can be avoided by unilateral
abandonment, a defendant whose conduct is detrimental to the
plaintiff but not actually illegal might change course, thereby
giving a plaintiff more relief than he could win through full-scale
adjudication.172
Buried in this argument is a less beneficent vision of civil
rights plain-tiffs. The Court sees the catalyst theory as giving
fees to a “plaintiff who, by simply filing a nonfrivolous but
nonetheless potentially meritless lawsuit (it will never be
determined), has reached the ‘sought-after destination’ without
obtaining any judicial relief.”173 In short, the Court feared a
wind-fall for undeserving plaintiffs—those who persuade defendants
to abandon “conduct that may not be illegal”—if the lower federal
courts could award fees without first being required to find actual
violations.174 Justice Scalia’s concurrence is more blunt: the
plaintiff who induces a defendant to aban-don conduct that no court
has found to be illegal175 may be getting re-warded for “a phony
claim.”176 As between giving a fee to someone with a phony claim
and denying a fee to a plaintiff with a solid case whose oppo-nent
manipulates the system to evade the fee statute, Justice Scalia
came down squarely against the civil rights plaintiff:
[I]t seems to me the evil of the former far outweighs the evil
of the latter. There is all the difference in the world between a
rule that denies the extraordinary boon of attorney’s fees to some
plaintiffs who are no less “deserving” of them than others who
receive them, and a rule that causes the law to be the very
instrument of wrong—exacting the payment of attorney’s fees to the
extortionist.177
Justice Scalia’s choice of words is deeply revealing. For him,
attorney’s fees are an extraordinary boon, and not the centerpiece
of an enforcement regime that sees the private attorney general as
an essential tool. And civil rights plaintiffs are potential
extortionists, rather than potential victims of conduct that the
Constitution or Congress has proscribed.
V. CONCLUSION
The overriding theme that links together the Supreme Court’s
deci-sions on a range of issues—from the scope of Eleventh
Amendment im-munity to the scope of congressional power under
section 5 of the Four-
172. See id. at 608. 173. Id. at 606 (emphasis added). 174. Id.
at 608. 175. Justice Scalia remarked that if he were writing on a
clean slate, he would probably decline to award fees even to a
plaintiff who obtains a conse